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Today in the Community: October 25, 2011

The Community discussion topic for today is M.B.Z. v. Clinton, in which the Court will consider the intersection of the political question doctrine and separation of powers in a contentious area of foreign policy.  At issue in the case is a 2002 law that requires State Department officials, when asked to do so, to designate “Israel” as the “place of birth” on the passport of a U.S. citizen born in Jerusalem.  Until that time, State Department regulations had attempted to avoid the thorny classification dilemma by simply designating “Jerusalem” – rather than “Israel” or “Palestine” – as the place of birth on passports for any U.S. citizens born in that city.

The petitioner in the case, M.B.Z., was born in Jerusalem to U.S.-citizen parents in 2002.  Although his parents asked the State Department to designate Israel as their son’s place of birth on his passport, the Department declined to do so despite Congress’s command to the contrary.  The parents sued to enforce the statute, resulting in a lengthy court battle that ultimately made its way to the Court, which on November 7 will hear oral argument on two questions:  (1) whether the political question doctrine bars the courts from deciding the dispute; and (2) whether Congress’s decision to enact the law at all encroached on executive authority and violated separation of powers.

SCOTUSblog’s Lyle Denniston covered the case at the cert. stage.  Click here for instructions on how to participate in the discussion.  We also include five especially insightful comments from the most recent Community thread after the jump.

Wesley Oliver

United States v. Jones has been one of this term’s most watched cases. On one level, it is easy to see why the case has attracted so much attention. The facts are easy to grasp and most average Americans have had occasion to think about modern technology’s impact on privacy. Most of us carry around tracking devices inside our cell phones like the ones law enforcement officials attached to Jones’ car, and that information is disclosed to third parties. Cell phone providers sell information about our movements to retailers who are able to target their advertising — alerting us nearby cheap gas or sales on shoes. Such disclosures are, at least theoretically, done with our consent, but virtually no one reads the fine print in subscriber contracts.

The proliferation of tracking technology has made the American public sensitive to the extent of information the government could gather about any of us. Alternatively, it has revealed the usefulness of technology in busting drug conspiracies or ferreting our terrorists.

For those familiar with criminal procedure, however, the direct implications of this case, do not seem to justify the attention the case has received. This is not because the privacy issues are not fascinating, or at the cutting edge of rapidly emerging technology. The attention the case has received suggests that the decision might could make it harder for police to attach GPS trackers to cars. The reality is that, no matter how the case is decided, it will not dramatically change the ability of officers to place these devices on cars in any individual case.

At most, the Court could conclude that warrants are required to use these devices. Civil libertarians cling to a notion that a neutral and detached magistrate will scrupulously review the affidavit supporting a search warrant and grant only those requests support a finding of probable cause. The reality is that almost no search warrants are denied. And, in many states, magistrates are required to possess nothing more than a high school diploma. Once these warrants are issued — as they most often are when requested — they are virtually unchallengeable and insulate the evidence obtained from suppression and the officers conducting the intrusion from lawsuits. United States v. Jones, in individual cases, could at most have only the modest impact that officers will have to go through the administrative hassle of applying for easily-obtained warrants.

The civil libertarian benefit to warrants is thus not the impact they have on most individual cases. Requiring warrants in all GPS cases, does however, have a benefit, albeit a much more attenuated benefit. Requiring police to apply for warrants, which they will surely be granted in most cases, creates a public record revealing enforcement patterns. If police departments allocate their resources disproportionately against racial minorities, or for the protection of affluent communities, or toward less serious crimes, such improper biases may be revealed in the patterns of their requests for GPS tracking devices. Media organizations and watchdog groups have access to the warrants and affidavits supporting the warrants granted. Public criticism of enforcement patterns could have a dramatic impact on police behavior.

It seems doubtful, however, that the case would have generated this much attention if the media realized that, as a practical matter, this case was more about the records police have to make of their conduct, rather than the scrutiny police would face when requesting warrants.

Fabio Arcila, Jr.

The first thing I want to do is set the stage a bit for Jones by briefly explaining its significance. Jones has the potential to be the most important Fourth Amendment decision in decades because it gives the Supreme Court the opportunity to fundamentally grapple with the most important Fourth Amendment decision, Katz v. United States. Katz, which famously embraced privacy as the core Fourth Amendment search protection, is also famously enigmatic. Does Justice Harlan’s two-part search standard (a subjective expectation of privacy, which is objectively reasonable), stated in his concurrence and embraced as the Katz governing standard ever since, accurately capture the majority ruling? Did Katz mean to replace property with privacy, or merely to supplement property with privacy? Katz‘s emphasis on privacy served as a foundation for the later spatial emphasis in Fourth Amendment law, as in California v. Greenwood (no privacy in curbside garbage). But are such spatial distinctions unfaithful to Katz? After all, they can be difficult to reconcile with Katz’s language that “What a person . . . seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” If the third-party doctrine is correct (see, United States v. Miller and Smith v. Maryland), it would seem that Katz should have lost given that he knowingly exposed his conversation to the telephone company, which could have accessed not just the telephone number he dialed but also the content of his conversation. Thus, though the third-party doctrine grew out of Katz and its move to privacy, there is some tension between the two. To what extent is Katz properly viewed, first and foremost, as a technological surveillance case, as opposed to a routine surveillance case? Jones is important because, no matter how one resolves Katz‘s mysteries, Jones offers an opportunity to both clarify and dramatically reform Fourth Amendment jurisprudence.

I think it quite likely that the Court will avoid these deeper issues, such as by ruling on very narrow grounds, or resolving the case solely on the seizure issue (which asks whether police “seized” Jones’s car by surreptitiously placing a GPS tracking device on it, without a warrant). But the stakes are very high, in particular given the increasing popularity, and ubiquitous GPS capability, of smartphones. A ruling against Jones means that the next step will certainly be law enforcement more commonly seeking disclosure of an individual’s GPS location data from wireless cellular providers via the third-party doctrine (something that is already occurring).

Erin Murphy – 

Three points:

1. Given that there are two Supreme Court cases on the books that address location tracking (e.g. the radio frequency based beepers in Knotts and Karo), I think that it is immensely important that the Court acknowledge that the changing nature of location tracking technologies affects the constitutional analysis. Even a categorical label like “GPS trackers,” used by many courts, is often overbroad inasmuch as it lumps many devices together and thereby conceals meaningful variations among them that should be considered with respect to the legal doctrine. A recent paper by Ian Hebert (forthcoming in the Berkeley Journal of Criminal Law) examined the technological specifications of a number of location tracking devices over time (including those used in Karo and Knotts), catalogued the key variables, and then analyzed their legal significance. Just to give a sense of some of these observations, he argues that devices should be classified according to the manner in which data is collected (radio-frequency, satellite, cell-site triangulation, or infrared beams); the manner in which data is conveyed, particularly with regard to the degree to which law enforcement must stay actively engaged with the target to acquire information (remote real-time transmission, passive collection of real-time information that must be physically retrieved from a device, real-time transmission requiring proximity); the durability of the data (how much material a device can store or transmit); the longevity of the device (how long the device can operate without intervention); the precision of the technology (in terms of the accuracy of the information and the precision with which it expresses that information); and the power source of the device (short-term batteries, long-term batteries, connected to automobile or user’s source). This kind of sensitive analysis is important regardless of the rule ultimately espoused, because it avoids falling into the trap of thinking that one concept (“location tracking”) is a fair descriptor of what is instead a wide range of possible means of gathering information. We know this intuitively as regards non-technology (a shout is not a phone call), but the point is often lost once a technological device is introduced. (Full disclosure, I advised the author of this paper.)

2. To the extent that these kinds of technical specifications are all too often ignored by courts, I think it reveals two fundamental problems with judicial reasoning in criminal justice/technology cases. First, it betrays a fundamental discomfort that many lawyers and judges have with technical questions about engineering, software design, science, etc. And second, it underscores the lack of information available to the parties with regard to the actual functioning of such devices, many of which are developed for the exclusive use of law enforcement by private companies that refuse to make available the technical specifications or proprietary technologies that underpin their instruments. Although such issues do and can arise with regard to instruments developed by the government, such concerns are particularly acute as regards tools created by industry, which are strongly sheltered from any scrutiny by their lack of party-status, as well as laws protecting intellectual property and corporate privacy. The inaccessibility of this kind of technical information conflicts with our otherwise strong commitments to transparency and reliability in criminal justice (not to mention due process and confrontation concerns), and yet the need for greater disclosure is all too often overlooked by scholars and the courts. A lawyer may not think to make technical arguments because technical specs aren’t found on Westlaw, but even if the lawyer tries, she will often be shut down by assertions that the information is protected. Yet as policing continues to utilize sophisticated technological tools (whether with regard to location trackers, DNA tests, biometric devices, etc.), courts must be willing to confront questions about disclosure and transparency.

3. Lastly, small point: I agree with the comments about the benefits of a warrant requirement in enhancing transparency, but would add one additional important point. The high percentage of warrants that are issued upon requests should not be interpreted as a sign that the warrant requirement has little practical effect. Quite the contrary: the steps required to obtain a warrant – both the ministerial tasks (e.g., typing out the affidavit, etc.) and the analytical tasks (e.g., articulating the basis) — create a strong disincentive to seek a warrant except in cases where it will be both almost certain to be granted, and likely to return valuable information. I have no doubt that the warrant requirement prevents a large number of searches from occurring – not because the warrant application is denied, but because it is never sought in the first place.

Joe Swartz

The first case that came to mind after reading this topic was Kyllo, in which police used heat sensing technology in 2001 to detect lamps used to grow marijuana inside a building without a warrant. The Court focused on the fact that the technology basically allowed the police to see into the building, a barrier the constitution and society want to protect from prying (unwarranted) eyes. I see this as the Court imagining the low-tech analogue of the new technology (seeing into the house), and deciding whether that would be constitutionally tolerable.

In this case, the low-tech analogue would simply be observation. Police are allowed to observe people and things in public as much as they want, without a warrant. One distinction is that the police would be able to monitor many more vehicles at once than if they simply followed the vehicles, which seems somewhat Orwellian and scary. Another distinction is that when the car enters private property and would come out of the plain-view of a human, the GPS device would continue to monitor the vehicle’s location.

This may be of little concern in some situations, such as a residential garage, where observation would yield the same result and wouldn’t give the police more information than the constitutional, low-tech analogue. Other situations raise concern, like on a private ranch or farm, where one couldn’t see the vehicle’s movement from public property. I know that isn’t the issue in this case, but it is an important consideration because I see that situation as the logical equivalent of the Kyllo case, where the new technology was ruled unconstitutional when not used along with a warrant.

I think the use in this case will be held constitutional, but I’m not sure legally, does anyone else know more about this area of constitutional law?

Alan Butler

In its amicus brief to the Court, the Electronic Privacy Information Center (EPIC) argues that low cost and increased access to GPS tracking technology enables pervasive, mass surveillance of the American public by law enforcement. Such surveillance is inconsistent with the Fourth Amendment’s protections “against unreasonable searches and seizures.” Today’s GPS tracking systems allow precisely the sort of impermissible “dragnet-type law enforcement practices” foreshadowed in the Supreme Court’s decision in US v. Knotts.

Significantly, this case implicates both the “reasonable expectation of privacy” Fourth Amendment standard as well as the more traditional property-based standard. Both claims have deep roots in Fourth Amendment law. In fact, in the first test of the application of the Fourth Amendment new surveillance technologies, Olmstead v. US, the Court followed a property-based analysis and found no privacy violation. In this case, however, the police installed the tracking device on Jones’s vehicle. So, the Court could find a violation of the Fourth Amendment under either theory.

In Commonwealth v. Connolly, the Massachusetts Supreme Court, when confronted with similar facts, concluded that such tracking is subject to Constitutional standards. The Supreme Court should reach the same conclusion in this case.

Recommended Citation: Aaron Tang, Today in the Community: October 25, 2011, SCOTUSblog (Oct. 25, 2011, 9:37 AM),